Friday, November 21, 2014

Lisa Madigan: Who or What Could Trump Police Powers?

“Remember,” Representative Nekritzsaid across the desk, “there isn’t a law or
statute that the General Assembly passes that we can’t undo later…”

Maybe Not…

(From the IRTA) Judge Belz Rules in Favor of Retirees SPRINGFIELD -
The Honorable John Belz handed down his ruling today from the 7th Judicial
Circuit Court stating that pension rights are constitutionally protected for
retirees in Illinois. "I am encouraged by the ruling made today by Judge
Belz," said Bob Pinkerton, President of the Illinois Retired Teachers
Association. "I remain hopeful that this decision, and the previous
verdict made by the Supreme Court on Kanerva, will once and for all determine
that Senate Bill 1 is unconstitutional and reiterate that the pension protection
clause means pension benefits for current workers and retirees cannot be
changed." Senate Bill 1 would cut a retiree's cost-of-living adjustments,
increase the retirement age of current employees and make unconstitutional cuts
to the pensions of working and retired members of the Teachers' Retirement
System. Now that Judge Belz has ruled on the case, the IRTA and other
organizations involved in the lawsuit are preparing for the Attorney General's
Office to continue the fight by taking their argument for the constitutionality
of Senate Bill 1 to the Supreme Court.

Henry Green

THANK
YOU: Henry Green and Helen Kinney

Delegates to
the 1970 Illinois Constitutional Convention

Without
Henry Green’s and Helen Kinney’s foresight, wisdom and prescience of likely
future political irresolution, the members of the five retirement systems in
Illinois could already have suffered the fate of other public employees in some
other states across the United States (Minnesota, Colorado, Rhode Island - to
name a few).Both individuals were
delegates to the Constitutional Convention of 1970, and Mr. Green was the
primary sponsor of Article XIII, Section V, which states that“membership
in any pension or retirement system of the State, any unit of local government
or school district, or any agency or instrumentality thereof, shall be an
enforceable contractual relationship, the benefits of which shall not be
diminished or impaired.”Ms. Kinney
was the secondary voice behind this attempt to insert into a constitution
unchanged for one hundred years a new guarantee of retirement security for
those who toiled for the state.

More new vocab:

Prior to the
efforts of these two, pension rights were dependent upon whether one’s pension
plan was compulsory or optional.In the former, a person signed on to the retirement
program offered at that point in time by the company, state, or
organization.In that sense, according
to one judicial review, “pension benefits in mandatory plans (were) mere
gratuities…springing from the appreciation and graciousness of the sovereign.
(Jan. 2008.Handbook of Illinois Pension
Case Law. Illinois Committee of Government Finance and Accounting)”In other words, as mere statutes, compulsory
pensions could be amended, repealed or ignored by an act of the legislature in
Illinois. On the other hand, later
rulings by the Illinois Supreme Court found that when a public pension was
optional, the employee’s right to receive later benefits was more likely a
contractual certitude.

After 1970,
and the adoption by the people of the State of Illinois of the new Constitution
and Article XIII, Section V, the issue of a reduction in pension payment due to
a disability was brought before the courts (Kraus vs.Board of Trustees).The court, led by Justice Stamos, relied
heavily upon the transcripts and comments of delegates Henry Green and Helen
Kinney in order to discern their intent in the original drafting of the
“pension clause.”

According to
conversations and notes by Henry Green, “The
underlying purpose of the pension clause was “to provide public employees with
a basic protection against abolishing their rights completely or changing the
terms of their rights by reducing their benefits after they had already
embarked upon employment. (http://www.dcbabrief.org/vol191106art4.html)”Green had admitted that he “promoted the pension promise, which was
based on a 1938 amendment to the New York State Constitution, because of
concerns raised by university employees who had lost ‘faith in the ability of
state and local governments to make benefit payments.’(http://www.news-gazette.com/blogs/central-illinois-gazette/2011-03//daily-dose)”

Helen Kinney

Helen
Kinney, later to become a distinguished judge in DuPage County was more direct:
“Benefits not being diminished really
refers to this situation: If a police officer accepted employment under a
provision where he was entitled to retire at two-thirds of his salary after
twenty years of service, that could not subsequently be changed to say he was
entitled to only one-third of his salary after thirty years of service, or
perhaps entitled to nothing.That is the
thrust of the word ‘diminished.’…It is simply to give them a basic protection
against abolishing their rights completely or changing the terms of their
rights after they have embarked upon the employment – to lessen them. (15
Feb 2011. IEA Fact Sheet: Reducing Pension Benefits for Current Educators)”

The Civic
Committee of the Commercial Club of Chicago’s legal advisors (Sidley Austin)
argue that two voices of the many delegates involved in the drafting of the
Illinois Constitution do not speak for the entire body of delegates.What about the endorsement of both Republican
and Democratic parties in 1970?What
about the more than one million voters who ratified it?What about common sense?

Nota Bene:

“The defendants have attempted to create
a factual record. to the effect that, if a reserved sovereign power to diminish
or impair pensions existed, the facts would justify an exercise of that power.
The defendants can cite to no Illinois case that would allow this affirmative
defense. Because the Court finds that no such power exists, it need not and
does not reach the issue of whether the facts would justify the exercise of
such a power if it existed, and the Court will not require the plaintiffs to
respond to the defendants' evidentiary submissions. The plaintiffs having
obtained complete relief, the Court also need not address at this time the
plaintiffs' additional claims that the Act is unconstitutional or illegal on
other grounds. See Kanerva, 2014 IL 115811,1158. in summary, the State of
Illinois made a constitutionally protected promise to its employees concerning
their pension benefits. Under established and uncontroverted Illinois law, the
State of Illinois cannot break this promise.”Judge Belz

2 comments:

“The Clause makes the State a Guarantor based on its plain meaning, Convention history, Illinois court decisions, and common law understanding of pension payments as creating a debtor relationship. Sidley’s ‘guarantor’ argument ignores the Clause’s plain language and common meaning.

“Sidley’s position is untenable for several reasons. First…, the Clause contains prohibitory language that pension benefit rights cannot be ‘diminished’ or ‘impaired.’ Illinois courts have interpreted the word ‘diminish’ under both the 1870 and 1970 Illinois Constitutions as a mandate to pay an obligation when due. As a consequence, Illinois courts will presume that the word ‘diminishment’ as used in the Pension Clause imposes an identical mandate that pension payments be paid when due, especially since the term has a settled legal meaning.

“This conclusion is bolstered by Delegate [Helen] Kinney’s statements at the Convention. Delegate Kinney explained that the term ‘impair’ ‘meant to imply and intend that if a pension fund would be on the verge of default or imminent bankruptcy, a group action could be taken to show that these rights should be preserved.’ She further explained that while the Clause ‘was not intended to require 100 percent funding or 50 percent or 30 percent funding,’ it would trigger funding if a court ‘determine[d] that imminent bankruptcy would really be [an] impairment’ in that pension payments could not be made.

“She also stated that ‘if the word ‘impairment’ bothers people, I suggest, if it is the wish of the Convention, that word could be deleted, and the rest of the [Clause] could stand’ via the word ‘diminish.’ In addition, the Illinois Supreme Court concluded in Lindberg [People ex rel. Illinois Federation of Teachers v. Lindberg, 1975], McNamee [v. State, 1996], and Sklodowski [People ex rel. Sklodowski v. State, 1998] that the Clause guarantees that pension recipients will receive pension payments when they become due. Relying on the statements of Delegates [Henry] Green and Kinney, the court explained in McNamee that the Clause was ‘intended to force the funding of pensions indirectly, by putting the state and municipal governments on notice that they are responsible for those benefits.’ As a result, Sidley’s search for the ‘magic’ word ‘guarantor’ in the Clause is unnecessary given the meaning of the terms ‘diminish’ and ‘impair.’" (M. Madiar, former Chief Legal Counsel to Illinois Senate President John J. Cullerton and Parliamentarian of the Illinois Senate).

About Me

I am a retiree, political activist, social advocate and community volunteer. I taught at Lyons Township High School in LaGrange for 34 years in the Language Arts classroom and worked as an administrator for several years. My current avocations include various community outreach and assistance programs. Having benefitted from employment in a collegial, reflective teaching environment that encouraged dedication and professionalism, I continue to seek the promotion of education at all levels as a long-term effort combining talent, perseverance, commitment, and constant professional growth - not a blind adherence to a business model of measured production.

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